Citation Nr: 0015919
Decision Date: 06/15/00 Archive Date: 06/22/00
DOCKET NO. 95-39 359 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to special monthly compensation based on the need
for the aid and attendance of another or on account of being
housebound.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
The veteran and his spouse
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The veteran had active service from February 1941 to July
1945 and from September 1950 to July 1952. He died in August
1999.
This matter comes before the Board of Veterans' Appeals
(Board) from rating decisions of the Department of Veterans
Affairs (VA) Regional Offices (RO) in Phoenix, Arizona, and
Los Angeles, California. On June 25, 1997, the Board issued
an appellate decision which denied entitlement to special
monthly compensation based on the need for the aid and
attendance of another or on account of being housebound. The
veteran appealed this decision to the United States Court of
Appeals for Veterans Claims (Court). The VA Secretary filed
a motion for remand in July 1999. In October 1999, counsel
for the veteran's spouse filed a pleading which indicated
that the veteran had died in August 1999 and which was
construed by the Court as a motion to permit substitution.
In an Order dated in December 1999, the Court denied the
construed motion to permit substitution and dismissed the
appeal for lack of jurisdiction. The Court further vacated
the June 1997 Board decision and noted that the order of the
Court vacating the Board decision had the legal effect of
nullifying the previous merits adjudication by the RO.
FINDING OF FACT
In the Order of December 1999, the Court vacated the Board's
June 1997 decision.
CONCLUSION OF LAW
The RO's February 1994 rating decision and all subsequent RO
decisions denying the issue on appeal are vacated. Landicho
v. Brown, 7 Vet. App 42, 54-55 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Court's December 1999 Order vacated the Board' June 1997
decision which had denied the veteran's claim for special
monthly compensation based on the need for the aid and
attendance of another or on account of being housebound.
Accordingly, the appropriate remedy in accordance with the
Court's Order is to vacate the underlying RO decisions
regarding this matter.
The veteran initially disagreed with the February 1994 rating
action of the RO in Phoenix, Arizona, which denied this
benefit. The Phoenix RO subsequently issued another rating
action in September 1994 with confirmed and continued its
earlier denial. The veteran's claims folder was thereafter
transferred to the RO in Los Angeles, California. A Hearing
Officer at this RO issued a decision in July 1995 which again
confirmed and continued the earlier denials. Accordingly,
these RO decisions must be vacated in conformance with the
Court's Order. Landicho v. Brown, 7 Vet. App 42 (1994).
In reaching this determination, the Board intimates no
opinion on the merits of any derivative claim brought by a
survivor of the veteran. 38 C.F.R. § 20.1106 (1999).
ORDER
The RO is directed to vacate the February 1994 decision and
subsequent decisions denying entitlement to special monthly
compensation based on the need for the aid and attendance of
another or on account of being housebound.
Gary L. Gick
Member, Board of Veterans' Appeals